Convicted rapist states his case

GEORGE BRENNAN

Saturday

Jun 29, 2013 at 2:00 AM

"Scared to death" that a second woman would tell jurors he raped her, David Pierce testified Friday that her looming testimony was the deciding factor in why he didn't take the stand in his own defense at his 2009 trial.

BARNSTABLE — "Scared to death" that a second woman would tell jurors he raped her, David Pierce testified Friday that her looming testimony was the deciding factor in why he didn't take the stand in his own defense at his 2009 trial.

Pierce, 48, a former master chief with the Coast Guard in Provincetown, testified in Barnstable Superior Court in support of his motion for a new trial. Pierce was convicted of raping his girlfriend, with whom he lived in West Yarmouth, on three occasions in 2005, and was sentenced to three to four years in state prison, which he is currently serving.

Pierce is seeking the new trial on the grounds that his attorney, James Merberg, provided ineffective counsel. His key argument is that Merberg failed to independently investigate what the second woman, a former girlfriend, allegedly told investigators, leaving his defense ill-prepared in the event that she was called to testify.

"For three years and three months, I asked Mr. Merberg to look into (the woman)," Pierce said. "He never looked into it. I knew it was a bunch of lies."

Pierce testified for more than 2½ hours about why he failed to take the stand in 2009. After his testimony, prosecutor Lisa Edmonds said she wanted a chance to follow up with Merberg, who testified Thursday about conversations he had advising Pierce.

Although Pierce's new attorney, Eric Tennen, objected to Merberg being asked those questions, he said outside the court that he would not appeal Judge Gary Nickerson's ruling that broadens Pierce's waiver of attorney-client privilege.

No date has been set for the hearing to continue because it will depend largely on Merberg's availability.

During Friday's hearing, Pierce said he was assured by Merberg consistently that the woman would never be called to testify, but he was worried when her name was brought up as a potential rebuttal witness before the trial got underway.

In an interview with Yarmouth police, the woman had described a violent relationship with Pierce, including an alleged rape.

In testimony Thursday, the woman said police misunderstood what she was telling them. She now says what she described to police was "emotional rape" by Pierce. Their sex was always consensual, she testified.

Pierce testified that he could have rebutted everything that was in that police report, but he worried how jurors would react to a second woman saying she was raped by him. Knowing her mental health history — she is diagnosed with bipolar disorder — Pierce also worried what she would say on the stand. "I had no idea what would come out of her mouth next," he said.

During the 2009 trial, the woman was on the prosecution's witness list, although then-Assistant District Attorney Thomas Shack said he would call her only as a rebuttal witness.

Pierce testified that he feared his own testimony would "open the door" to her being called. Ultimately, after a weekend of consulting with family, he changed his mind on what had been a long-standing agreement between him and Merberg that he would testify.

"The DA was going to do his damnedest to get me to talk about (her)," Pierce said of his decision.

Merberg had told jurors during his opening statement that they would hear from Pierce during the trial, a promise that ultimately wasn't kept.

Pierce never testified and neither did the woman.

Pierce said his willingness to testify began to falter as he watched how little character witnesses were allowed to say about him. He feared his own testimony would also be limited, he said.

"I was warned about what I was going to say so as not to open the door to (the woman)," Pierce said.

Edmonds pointed out during her cross-examination that jurors did get to hear from Pierce in a videotaped interview with police. During that interview, which was carefully redacted before jurors saw it to remove mention of the woman who testified Thursday, Pierce gave his explanation for the victim's bruises, saying they were caused by a "tickle fight." He also described the woman's jealousy over him getting a new Coast Guard assignment, which coincided with the allegations.

Even though his sentence is more than half over, Pierce told the Times during an interview in the spring that he wanted a new trial so he could testify on his own behalf and clear his name.

At times on Friday, Pierce was so eager to tell his side of the story that he had to be reeled in by Nickerson to answer only the questions asked by his attorney and Edmonds. He stood at the bar without handcuffs, but his legs remained shackled.

The woman continues to correspond with Pierce in prison and acknowledged during her testimony Thursday that she has even sent him scantily clad photos of herself.

Pierce testified that he has written back to the woman but does not profess love or affection. He has made no attempt to stop her steady stream of cards and letters, he said, because he didn't want to upset her.

"I wanted her here to assist in the truth of this case," Pierce said, adding that he has done nothing to influence or taint her testimony.

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